TMI Blog1992 (7) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... e preferred against the said order is received in the Registry on 30-4-1992. Vide Sec. 35B(2) of the Central Excises Salt Act, 1944, the appeal is required to be filed within three months from the date of communication. The delay in filing the present appeal is thus, little over eight months. 3. The plea of the applicant is that the Tribunal ought to exercise its discretion vide sub-section (5) of Section 35B of the Act and condone the delay. 4. Mr. A. Hidayatulla, the ld. Sr. Counsel appearing for the applicants has pleaded that the delay has occurred on account of erroneous legal advice/opinion given by a lawyer and has stated that on receipt of the impugned order-in-appeal, the applicants had approached him and going through the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the present appeal be condoned. He has also pleaded that there is no overt act of negligence on the part of the applicants so as to disentitle them from availing of discretionary relief. 5. Mrs. Lipika Majumdar Roy Choudhury, the ld. SDR, while opposing, has pleaded that the delay is considerably long and that the action of the applicants could be viewed as an opportunistic attempt to gain something, though, on the advice of their legal experts, they were convinced that point was not worthy of taking up in appeal, and was duly accepted by them and that on their own volition, they had permitted the time to lapse. Pleading that the judgments referred to by the ld. Sr. Counsel are distinguishable on the facts and are not applicable here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been existing and which, in the considered opinion of the ld. Counsel, had no scope for challenge. 8. The issue here, therefore is not the one of an erroneous advice by a lawyer, resulting into mis-direction to the party, and where the party should not be made to suffer on that count. The issue that can be identified for the purpose of present application is therefore whether, the party, having been guided by the legal opinion, based on the then prevailing position, can be held to have been misdirected, so as to avail of the said ground for condonation of delay, if at a subsequent stage, the said legal position is made subject to doubt by some decision, holding a contrary view . 9. We fear, holding such a ground as providing ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided dear indications of their intention to appeal against the order and had, at no time, accepted the same. Here, on the other hand, on being satisfied with the opinion of the Counsel, on which the party themselves would also have applied their mind, they permitted the time to lapse and only when some decision, expressing some view which could disturb the view held by the Collector (Appeals), came to be given that they have woken up. 11. It may also be worth noting that the written opinion from the Sr. Counsel was obtained only in September 1991, whereas the period for filing the appeal was already over by July 1991. 12. Thus, here the issue is not the one of misguiding by any opinion of the lawyers, in the simpler sense. The legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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